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Criminal Miscellaneous No. 4782 of 1970, decided on 22nd July 1970.

S. 497(2)‑Bail [Murder case]‑Two gazetted Police Officers investigating case finding accused innocent‑Real culprits reported to be at large and further investigation in progress‑Opinion of investigating officers, although, no legal evidence, yet case requiring further investigation and inquiry, held, covered under subsection (2) of S. 497‑Accused admitted to bail in circumstances‑Penal Code (XLV of 1860), S. 302/109.

Ali Ahmad Awan for Petitioners.

Rashid Aziz for the State.

Allah Bakhah and Bashir Ahmad are being prosecuted for causing the death of Bhoja. According to the prosecution, Allah Bakhsh, Bashir Ahmed and others wanted to take the possession of the land which was occupied by Bhoja and his brother 'Malik Khaliloo as the tenants of one Doctor Shibli as it was claimed by Allah Bakhsh that he had obtained the said land on lease. On the eventful day, Allah Bakhsh asked Bashir Ahmad to plough the land with a tractor, whereupon Bhoja deceased came forward who was fired by Allah Bakhsh with his gun. Bhoja fell' down and died on the spot instantaneously.

2. The petitioner moved the learned Additional Sessions Judge, Rahimyarkhan, for bail, who rejected the same by his order dated the 6th July 1970. Aggrieved by the said order, the petitioners, have put in an application for bail in this Court.

3. In the course of hearing, learned counsel for the State placed on the record the instructions which he had received vide communication No. 27280 dated 20th July 1970, addressed to the Officer on Special Duty, Advocate‑General's Office, Lahore. The instructions read as follows:

"2. The facts alleged by the petitioners in their petition are" correctly recorded. Both the petitioners have been found innocent‑ by the two gazetted Police Officers who carried out the investigation at the spot.

3. Five eye‑witnesses named Malik Khaliloo, Multan Sakhal, Ahmed and Nannu gave evidence against the petitioner which resulted into their arrest. The real culprits are still at large. Further investigation is in progress.

4. There is no objection if the petitioners are admitted to bail."

4. From the facts narrated above it is obvious, that the peti tioners have been found innocent by the two gazetted Police Officers. It seems to me that the case in which the guilt of the petitioners certainly require further investigation end inquiry and as such, their case is covered by section 497 (ii) of the Code of Criminal Procedure. I am conscious of the fact that the opinion of the investigation officers certainly do not constitute legal, evidence, but being adverse to the prosecution, it put one on an inquiry as to the veracity of the prosecution case.

5. In the circumstances, of the present case, in my opinion, it is a fit case for bail. I admit the petitioners to bail, provided they execute bail bond in the sum of Rs. 10,000 (rupees ten thousand) each with one surety each in the like amount, to the satisfaction of the Assistant Commissioner, Rahimyarkhan.

Bail allowed.

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